What is meant by the term public interest? And does it trump a public figure’s right to privacy? Richard Ackland casts a gimlet eye over the concept and the difference between the media and judicial view

That’s for our readers to tell … That will be determined by the number of people that buy the paper“. So said the deputy editor of The Sunday Telegraph, Helen McCabe, when asked by Media Watch in 2009 what was the public interest in her paper publishing those pouty photos of a young Pauling Hanson, in lingerie. Except, as it expensively transpired, it was not Pauline Hanson.

It’s not the first time journalists boldly have conflated the public interest with the circulation of newspapers.

The blurring of the public interest with what journalists and editors calculate is interesting to the public has an elemental appeal.

Five News Ltd Sundays stumped up Aus$15,000 between them to buy the snaps from a former soldier, who claimed to have been Ms Hanson’s lover in the 1970s.

The case for News Ltd didn’t improve when Sunday Herald Sun columnist Robyn Riley opined, on March 15, 2009:

“Public people are public property whether they like it or not. If Ms Hanson expects to be elected at this month’s Queensland elections to represent the people in the seat of Beaudesert, then her ideals, opinions, behaviour and beliefs must be scrutinised.

Channel 7 also clutched the public interest to its manly bosom in an effort to justify a story in 2010 about the then NSW minister for transport, David Campbell, visiting for two hours a men-only gay club and steam facility known as Kens at Kensington.

In fact, a series of public interests were advanced in an effort to justify this invasion of the victim’s privacy. They were wheeled out in succession, each one collapsing under the weight of its own stupidity.

At first there was the public interest in the use of a ministerial car to drive from Macquarie Street to Anzac Parade. In fact, the use of the car was within the applicable guidelines.

There was the possibility the minister might be blackmailed. That too didn’t wash.

Then there was the public interest in the exposure of the minister’s hypocrisy because he also wanted to be seen as a good family man. The notion that a person couldn’t be a good and loving family man if they visited Kens at Kensington didn’t take long to evaporate completely.

The only public interest, torturously conjured, was a public interest in knowing that Campbell (pic) had resigned from the ministry because Channel 7 was about to air its story about him.

The peculiar circularity of that justification appealed to the Australian Communications and Media Authority, because that was the basis of its finding that the breach in this instance of the privacy provisions of the commercial TV code of practice was justified “in the public interest”.

The Hanson and Campbell cases occupy firm places in journalism’s darker corners. Regardless of the special pleading by Channel 7 and well as News Ltd editors and columnists and the unfathomable logic of ACMA, few others recognised those two stories lay anywhere close to “the public interest”.

It is not always so clear.

At which end of the public interest spectrum lies the story The Age and Nationwide News wished to publish in 2006, revealing the identity of AFL players who tested positive at least once to the use of illicit drugs?

The AFL and the AFL Players Association had a policy whereby players were allowed to test positive to drugs on two occasions and their names would be kept confidential.

If a player tested positive a third time they were reported to the AFL Tribunal and thereby would be outed publicly.

The main Melbourne papers wanted to publish the names of players who had tested positive on at least one occasion. Many of those names were already published on blogs and online discussions.

Justice Murray Kellam ruled that publication of this information would not amount to disclosure of an “iniquity”, which otherwise would justify a breach of confidence.

In any event, he didn’t think a public interest defence would be applicable in this case.

Moving further along the spectrometer, how strong is the public interest case for The Sydney Morning Herald’s interesting stories about former premier Neville Wran’s dementia and the squabble over family money?

Are people who used to be public figures as much public property as real live public figures? What about the application of dodgy techniques to get news that is in the public interest?

The Brits are particularly good at this. Sky News approved the hacking of John Darwin’s emails and wound up with a wonderful story.

Darwin (right) was known as the “canoe man” who “disappeared” while paddling in the North Sea, so that his wife (right) could cash in his insurance policy.

The email hack revealed Mrs Darwin was in on the scam, and as she was being investigated for allegedly being part of the deception Sky passed the information onto the police.

This was a factor in securing her conviction and enabled Sky to run a detailed post-conviction story.

If here the public interest in the disclosure of a crime outweighed the right to privacy where is the cut off point? Does it become acceptable to hack emails and phone messages of anyone charged with an offence in the expectation of revealing public interest information?

The Sunday Times got an important scalp recently when one of the co-treasurers of the Conservative Party was caught by hidden camera boosting access by wealthy corporate donors to the inner sanctum of No 10 – even with the alluring prospect of meeting Samantha Cameron.

The means involved subterfuge, but the revelation undoubtedly was in the public interest.

At the highest pinnacle of British law, the Supreme Court, there was a valiant attempt in March this year to get to grips with the public interest.

The case was Flood v Times Newspaper and, thankfully, the judges reinforced the responsible journalism defence in defamation.

The story published in The Times in June 2006 concerned information that the Metropolitan Police was investigating allegations that ISC Global, a British security company with wealthy Russian clients, had corruptly paid Gary Flood, who was a police officer, for access to information about moves by the Kremlin to seek the extradition of Russians living in Britain.

The trial judge found there was a public interest defence for the print version of the story and partly for the online version.

The Court of Appeal found that the public interest claim by the paper could not be sustained because the journalists had not acted responsibly.

Times Newspapers appealed and we got some interesting reasons.

The president of the court, Lord Phillips (pic) had this to say:

“The public interest is whether, and in what circumstances, it is in the public interest to refer to the fact that accusations have been made, and in particular that accusations have been made to the police, that a named person has committed a criminal offence. This issue embraces the question of whether, if it is in the public interest to report the fact of the accusation, it is also in the public interest to report the details of the accusation.”

He seems to be saying the public interest is what is in the public interest and then it becomes a two step process: the public interest in reporting an accusation against someone and further the public interest in going further and reporting many of the details.

Once judges start fiddling around with the public interest you know things are going to get horribly complicated and uncertain.

Happily it ended well for The Times, but it does show that the public interest is a far more nuanced concept than simply saying, “public people are public property whether they like it or not”.

Ideally, the point at which the public interest and material of interest to the public intersect is the high point of journalism.

In the Finkelstein report into the media the phrase “public interest” was used 85 times.

In each application of the phrase you can be certain that in the hands of journalists, editors, judges or media regulators it would take on a different hue, a different interpretation.

As Humpy Dumpty put it so eloquently to Alice: “When I use a word it means just what I choose it to mean – neither more nor less.”

Richard Ackland is the publisher of Law Press of Australia and editor of the online law journal Justinian. He writes a regular legal affairs/media column for The Sydney Morning Herald.

This book review originally appeared in the Gazette of Law and Journalism – Australia’s leading online media law journal.